Feingold v. New York City Railway Co.

New York Supreme Court

Feingold v. New York City Railway Co.

57 Misc. 650

DecidedFebruary 15, 1908

StatusPublished

This text of 57 Misc. 650 (Feingold v. New York City Railway Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Feingold v. New York City Railway Co., 57 Misc. 650 (N.Y. Super. Ct. 1908).

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Opinion

Per Curiam.

On August 10, 1904, at lialf past three in the morning, plaintiff was on a wagon which was being driven by one iSchwartzberg through Fourth street in a westerly direction towards (Third avenue. When the wagon was being driven across Third avenue it was struck by defendant’s car, and plaintiff received injuries for which she here seeks to recover. At the end of plaintiff’s case the court dismissed the complaint. Plaintiff appeals. Inasmuch as the complaint was dismissed on plaintiff’s evidence alone, that evidence is entitled not only to belief but to all favorable inferences that may reasonably be drawn there[651]*651from. Schwartzberg, the driver, swears he looked on both sides before crossing the track, and saw a car standing at the corner of Third street; that, as he started to cross, the car started up and came on with great force and speed and struck the hind wheel of the wagon, causing the damage complained of. He says, on cross-examination, that he was not in the employ of plaintiff. His testimony is as follows: e< Mrs. Feingold did not hire my wagon that day. She did not hire me. She did not work for me but for herself. She had a store. She did not hire me to take her to the market. I took her to the market, and she brought some goods and she gave me the expressage on the wagon. I took her to the market to get the order she was to give me. I delivered the goods for her. She was sitting inside the wagon. I was driving the wagon.” There were four people in the wagon, the driver, the plaintiff, one Meyer Schreidman and one Samuel Schreidman. They all give the same version of the accident. Only the driver states that “ the people in the wagon ” wanted him to hurry, • and he “ did not want to hurry.” The plaintiff appears to have had no control whatever of the driver; and, even if the accident resulted from the concurrent negligence of the driver and the defendant, there urns no contributory negligence on her part. It seems to us that the case should have been submitted to the jury.

Present: G-ildersleeve, Seajbury and Gerard, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Per Curiam.

On August 10, 1904, at lialf past three in the morning, plaintiff was on a wagon which was being driven by one iSchwartzberg through Fourth street in a westerly direction towards (Third avenue. When the wagon was being driven across Third avenue it was struck by defendant’s car, and plaintiff received injuries for which she here seeks to recover. At the end of plaintiff’s case the court dismissed the complaint. Plaintiff appeals. Inasmuch as the complaint was dismissed on plaintiff’s evidence alone, that evidence is entitled not only to belief but to all favorable inferences that may reasonably be drawn there[651]*651from. Schwartzberg, the driver, swears he looked on both sides before crossing the track, and saw a car standing at the corner of Third street; that, as he started to cross, the car started up and came on with great force and speed and struck the hind wheel of the wagon, causing the damage complained of. He says, on cross-examination, that he was not in the employ of plaintiff. His testimony is as follows: e< Mrs. Feingold did not hire my wagon that day. She did not hire me. She did not work for me but for herself. She had a store. She did not hire me to take her to the market. I took her to the market, and she brought some goods and she gave me the expressage on the wagon. I took her to the market to get the order she was to give me. I delivered the goods for her. She was sitting inside the wagon. I was driving the wagon.” There were four people in the wagon, the driver, the plaintiff, one Meyer Schreidman and one Samuel Schreidman. They all give the same version of the accident. Only the driver states that “ the people in the wagon ” wanted him to hurry, • and he “ did not want to hurry.” The plaintiff appears to have had no control whatever of the driver; and, even if the accident resulted from the concurrent negligence of the driver and the defendant, there urns no contributory negligence on her part. It seems to us that the case should have been submitted to the jury.

Present: G-ildersleeve, Seajbury and Gerard, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

57 Misc. 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feingold-v-new-york-city-railway-co-nysupct-1908.